The Uniform Code of Military Justice does not require that a sexual offense be completed for it to be a crime. When a service member takes meaningful steps toward committing a sexual act or sexual contact prohibited by Article 120, codified at 10 U.S.C. 920, but the act is not completed, the conduct can be charged as an attempt under Article 80 of the UCMJ, codified at 10 U.S.C. 880. Attempt is a distinct offense with its own elements, and it allows the military justice system to address dangerous conduct that stops short of the completed crime, whether because the accused was interrupted, the victim resisted or escaped, or for some other reason the underlying offense did not occur.
The Attempt Statute
Article 80 defines an attempt as an act, done with specific intent to commit an offense under the code, amounting to more than mere preparation and tending, even though failing, to effect its commission. Breaking that definition into elements, the government must prove that the accused did a certain overt act, that the act was done with the specific intent to commit a particular offense under the UCMJ, that the act amounted to more than mere preparation, and that the act apparently tended to bring about the commission of the intended offense. When the intended offense is a violation of Article 120, those general attempt principles apply to the specific sexual act or contact the accused intended to commit.
Specific Intent Is Essential
Attempt is a specific intent crime. It is not enough that the accused engaged in conduct that could have led to a sexual offense. The government must prove that the accused actually intended to commit the underlying Article 120 offense. This intent requirement is significant because it means an attempt charge focuses on what the accused was trying to accomplish, not merely on the appearance of the conduct. Evidence of intent can come from words, conduct, the surrounding circumstances, and the relationship between the act taken and the offense intended.
More Than Mere Preparation
The line between preparation and an attempt is often the central battleground in these cases. Buying a drink, sending a message, or being alone with someone is ordinarily preparation, not an attempt. The law requires an overt act that amounts to more than mere preparation and that tends to effect the commission of the offense. Military courts apply a substantial step analysis, asking whether the overt act was a direct movement toward the commission of the crime that strongly corroborates the accused’s criminal intent and shows a resolve to carry out the offense. Whether a given act crosses that line is decided case by case on the specific facts.
Why the Act Was Not Completed Usually Does Not Matter
A defining feature of attempt law is that the reason the offense was not completed generally does not defeat the charge. If the accused took a substantial step with the required intent, the fact that the victim resisted, that a third party intervened, that the accused was discovered, or that circumstances otherwise prevented completion does not undo the attempt. The crime is complete once the elements of attempt are met. This is why an attempt can be charged even though no completed sexual act or contact occurred.
Abandonment
Military law recognizes a narrow defense of voluntary abandonment. If the accused freely and voluntarily abandoned the criminal effort because of a genuine change of heart, and not merely because of a fear of detection, the inability to complete the act, or a decision to wait for a better opportunity, that voluntary and complete renunciation can be a defense to attempt. The abandonment must be truly voluntary and not the product of outside resistance or interruption. Because the standard is demanding, whether the defense applies depends closely on the facts of the case.
How Attempts Are Charged and Punished
An attempted violation of Article 120 is ordinarily charged under Article 80 as an attempt to commit the specified Article 120 offense. Under Article 80, the maximum punishment for an attempt generally may not exceed the maximum authorized for the completed offense, and certain limits apply, such as the rule that death may not be adjudged for an attempt. The available punishment for a serious attempted sexual offense can still be substantial, and a conviction can carry consequences such as confinement, a punitive discharge, and sex offender registration depending on the offense.
Related Theories the Government May Use
Depending on the facts, the government may also consider other theories that capture incomplete or preparatory conduct, such as charging a lesser completed offense that the evidence does support, or charging conduct that constitutes a separate offense in its own right. Which charges fit a given set of facts is a legal judgment that depends on the evidence, and the defense can challenge whether the proof actually establishes the elements of attempt as opposed to mere preparation.
What This Means for an Accused
A service member can be convicted of attempting a violation of Article 120 even when no completed sexual offense occurred, provided the government proves specific intent and a substantial step beyond mere preparation. Because these cases turn on intent and on the preparation versus attempt distinction, and because a possible abandonment defense is narrow and fact dependent, anyone facing such a charge should consult a qualified military defense attorney who can examine whether the evidence truly satisfies the elements of attempt under Article 80.
Disclaimer
This article is provided strictly for general educational and informational purposes. It is intended to explain how the Uniform Code of Military Justice (UCMJ), the Rules for Courts-Martial, the Military Rules of Evidence, and related military administrative processes work as a matter of public legal education. It does not constitute legal advice, a legal opinion, or a recommendation about any particular case, and it is not a substitute for advice from a qualified military defense attorney who can evaluate the specific facts and command, service, and jurisdictional circumstances involved.
Reading this article, or contacting any website on which it appears, does not create an attorney-client relationship between the reader and any law firm, attorney, or author. Every court-martial, nonjudicial punishment action, administrative separation, and security-clearance matter turns on its own facts, the charged articles, the convening authority, the service branch, and the evidence, and outcomes vary widely from one case to another.
Military law also changes over time. The Military Justice Act of 2016 (effective January 1, 2019) and subsequent National Defense Authorization Acts renumbered and rewrote many punitive articles, revised the Article 32 preliminary hearing, and altered sentencing, clemency, and appellate procedures. Statutes, regulations, executive orders, the Manual for Courts-Martial, and decisions of the service Courts of Criminal Appeals and the Court of Appeals for the Armed Forces may have been amended, superseded, or reinterpreted after this article was written, and article numbers or procedures cited here may have changed.
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